Mayer v. Johnson, 5262.

• Decision Date: 17 February 1941
• Docket Number: No. 5262.,5262.
• Citation: 148 S.W.2d 454
• Parties: MAYER v. JOHNSON et al.
• Court: Texas Court of Appeals

148 S.W.2d 454

MAYER v. JOHNSON et al.

No. 5262.

Court of Civil Appeals of Texas. Amarillo.

February 17, 1941.

Rehearing Denied March 10, 1941.

Appeal from District Court, Potter County; E. C. Nelson, Jr., Judge.

Suit by Richard Mayer, by next friend, against Montford T. Johnson and others, for personal injuries received in an automobile accident. From a judgment for the defendants, the plaintiff appeals.

Affirmed.

Fischer & Strickland, of Amarillo, for appellant.

C. H. Heard, of Dallas, and D. H. Culton and Morgan, Culton, Morgan & Britain, all of Amarillo, for appellees.

STOKES, Justice.

This suit was filed by appellant, Richard Mayer, a minor, acting by his mother and father, Ed R. Mayer, as next friends, against appellees, Montford T. Johnson, and his son, Montford T. Johnson, Jr., a minor, for damages arising from personal injuries received by appellant in an automobile accident which occurred November 25, 1937.

When appellant concluded the introduction of his testimony and rested his case, appellees presented to the court a motion for a peremptory instruction, which was granted, and judgment was entered that appellant take nothing by his suit. His motion for a new trial being overruled, appellant duly excepted, gave notice of appeal and has perfected an appeal to this court.

The record shows that the automobile which belonged to Montford T. Johnson was being operated by his son, Montford T. Johnson, Jr., and that appellant, together with six other young people, were occupying the same as guests of appellee, Montford T. Johnson, Jr. The young people were in attendance upon a social function at the club house of the Amarillo Country Club, located a short distance west of the city of Amarillo, and about midnight, during an intermission, they got into the automobile and drove to the Colonial Kitchen for some refreshments, the Colonial Kitchen being located in the city of Amarillo about a mile east of the club house. While partaking of the refreshments some other young people came to the Colonial Kitchen and conferred with some of the occupants of Johnson's car, after which they left the Colonial Kitchen and proceeded back in the direction of the club house. It seems that the occupants of the Johnson car thought the occupants of the other automobile were following them and, in a playful mood, Johnson, Jr., on his way back toward the club house, drove his car into a street leading in another direction, turned off the lights, turned the car around and stopped for the purpose, it seems, of dodging the other car. The Johnson car remained in this side street for some few minutes, with the lights off, and, thinking they had succeeded in dodging the other young people, Johnson turned the lights on and proceeded back to Tenth Street, the street which he had left when he drove into the side street, thence west on Tenth Street to Avondale Avenue. He turned to the right on Avondale, crossed the railroad, and again turned off the lights of the car and proceeded several blocks on Avondale Avenue to Highway No. 66, some seven or eight blocks north of and parallel to Tenth Street. The point at which they reached Highway No. 66 was near the southwest corner of the Country Club grounds and several hundred yards west of the entrance to them. The testimony shows that some of the young people thought the driver would proceed east on Highway No. 66, enter the club grounds, and return to the club house, but instead, he made a slight jog to the left and entered a road which proceeded on north just outside and along the west line of the club grounds. While driving along this portion of the route Johnson, Jr., again extinguished the automobile lights, but upon being requested to turn them on and being reminded that the road was exceedingly rough, he turned them on again and proceeded north until he reached the northwest corner of the club grounds where he approached the Gem Lake road coming from the west and running east along the north side of the Country Club grounds. Here he stopped his car and then proceeded to enter the Gem Lake road, turned to the right, or east, and again extinguished the lights of his automobile. Upon some complaint being made he remarked that he could not see but again turned on the lights and proceeded east on Gem Lake road for about a half mile where the road ended by entering Western Avenue, a paved road running north and south. On the east side of Western Avenue was an embankment against which the car plunged and the impact demolished the car and resulted in personal injuries to appellant, for which he seeks damages.

A number of assignments of error and propositions of law are presented and urged by appellant but, in the view we take of the case, the controlling issues are presented by the fourth and fifth propositions in which the contentions are made, first, that the court erred in instructing the jury to return a verdict in favor of Montford T. Johnson, the father, because there was abundant evidence to support a finding by the jury of negligence on the part of Montford T. Johnson, Jr., and, he having used the car with the knowledge and consent of Johnson, Sr., who knew his son, Johnson, Jr., was not a safe and careful driver, the father would be liable to appellant for the damages suffered by him as a result of the son's negligence. Secondly, that the court erred in instructing the jury to return a verdict in favor of Montford T. Johnson, Jr., because there was abundant evidence to support a finding of gross negligence on his part in the manner in which he operated the car which resulted in the accident and consequent injury and damage to appellant.

Since the decision of the Supreme Court in the case of Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063, 1067, the rules governing the liability of a father who permits his children to operate the family automobile have been settled in this state. In the opinion in that case Judge Hickman, speaking for the court, quoted a text from 5 Am.Jur. Automobiles, Sec. 355, as follows: "An owner who lends his automobile to another, knowing that the latter is an incompetent, reckless, or careless driver, is liable for such person's negligence; the owner's liability in such cases is based upon his own negligence in intrusting the automobile to such a person. Intrusting the car to a minor child known to be a reckless and incompetent driver * * * constitutes an act of negligence for which the owner is liable." The rule thus announced is approved by the court as a sound principle of law sustained by the authorities and the liability of Montford T. Johnson, Sr., must be measured by its provisions. The only evidence in the record tending to show that Johnson, Jr., was an incompetent, careless or reckless driver is contained in his own testimony. He was called as a witness by appellant and testified that he had been up before the cops for speeding once at Borger. He said he did not remember whether he had paid a fine on that occasion but that he did not go to court. He said that he told his father about the incident and that he had the permission of his father to use the car the night the accident happened. We do not deem it necessary to go into an extended discussion of this phase of the case. The record does not show that the young man was actually violating the law at Borger on the occasion testified about by him. He merely stated that he had once been "up before the cops" but that he did not attend court in connection with the incident. Granting that he had been detained by the police at Borger or even that he had been charged with violating a traffic regulation of some kind and found guilty thereof, we do not think this one incident is sufficient to establish the fact that he was an incompetent, reckless or careless driver. It was shown that he had been driving the car for practically a year in and around Amarillo and that he had never had any other trouble or been charged or accused of recklessness, carelessness or incompetency in driving or operating an automobile. Under the law as announced by the Supreme Court in the case above cited, Montford T. Johnson, Sr., could not be held liable for the consequences of the accident which caused the damage in this case unless it was shown that his son was an incompetent, reckless or careless driver, and that the father knew of his incompetency in that respect. The testimony falls far short of establishing these elements and in so far as Johnson, Sr., is concerned, it is our conclusion that no cause of action was shown by the testimony. Appellant's contention that the court erred in giving the peremptory instruction as to Johnson, Sr., will, therefore, be overruled.

Under the next contention presented by appellant it is asserted that there was abundant evidence to support an action for gross negligence on the part of Montford...